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Detention by armed groups: overcoming challenges to humanitarian action

Published online by Cambridge University Press:  27 March 2012

David Tuck
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Abstract

Armed conflict and deprivation of liberty are inexorably linked. Deprivation of liberty by non-state armed groups is a consequence of the predominantly non-international character of contemporary armed conflicts. Regardless of the nature of the detaining authority or the overarching legality of its detention operations, deprivation of liberty may nonetheless have serious humanitarian implications for the individuals detained. Despite a need for humanitarian action, effective engagement is hampered by certain threshold obstacles, such as the perceived risk of the group's legitimization. Since the formative work of the International Committee of the Red Cross (ICRC)'s founder, Henry Dunant, the ICRC has sought to overcome these obstacles. In doing so it draws upon its experience of humanitarian action in state detention, adapting it to the exigencies of armed groups and the peculiarities of their detention practice. Although not without setbacks, the ICRC retains a unique role in this regard and strives to ameliorate the treatment and conditions of detention of persons deprived of liberty by armed groups.

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Articles
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International Review of the Red Cross , Volume 93 , Issue 883: Engaging armed groups , September 2011 , pp. 759 - 782
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Copyright © International Committee of the Red Cross 2012

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References

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9 Common Article 3; AP II, Art. 1(1).

10 Whitfield, Teresa, Engaging with Armed Groups: Dilemmas & Options for Mediators, Centre for Humanitarian Dialogue, October 2010, p. 6Google Scholar, available at: www.hdcentre.org/files/HDC_MPS2_EN.pdf (last visited 7 February 2011). M. Mack and J. Pejic, above note 8, p. 11, also note that the ‘parties [to NIAC] vary widely in character’.

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12 In international armed conflict, Articles 43 and 78 of the Fourth Geneva Convention (GC IV) require periodic review of the reasons for the continued internment of civilian internees. In NIAC, reference should be made to Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Vol. I: Rules, ICRC and Cambridge University Press, Cambridge, 2009, pp. 347–352Google Scholar.

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14 Ibid., p. 494.

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17 Common Article 3(1)(b); AP II, Art. 4(2)(c).

18 See ICRC, ‘ICRC position on hostage taking’, in International Review of the Red Cross, Vol. 84, No. 846, 2002, pp. 467–470; International Convention Against the Taking of Hostages, open for signature 17 December 1979, 1316 U.N.T.S. 205 (entered into force 3 June 1983), Art. 1; Elements of Crimes of the International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Arts. 8(2)(a)(viii) and 8(2)(c)(iii), pp. 129 and 147.

19 Aeschlimann, Alain, ‘Protection of detainees: ICRC action behind bars’, in International Review of the Red Cross, Vol. 87, No. 857, 2005, p. 83CrossRefGoogle Scholar.

20 G. McHugh and M. Bessler, above note 6, pp. 17–21, list ‘motivations, structure, principles of action, interests, constituency, needs, ethno-cultural considerations and control of population and territory’ foremost among the characteristics of armed groups, which, if understood, ‘can greatly assist negotiators in securing better outcomes’ (emphasis added). This is also true for humanitarian actors.

21 Even within relatively well-resourced armed groups, the persons immediately responsible for the care and custody of the detainees may not have access to essential finances, personnel, equipment, infrastructure, etc.

22 There are, however, many noteworthy exceptions, such as the detention operations of the FAFN, described above. Furthermore, some armed groups detain in populated, urban environments that are under the general control of the opposing party to the armed conflict. In such cases, the location of the detention operations is subject to the strictest secrecy.

23 Sjöberg notes that persons deprived of liberty by the ELN are ‘held in the jungles under harsh conditions (lack of medicine, medical services, food, etc.). As a consequence, they sometimes get sick or even die’. Ann-Kristin Sjöberg, ‘Challengers without responsibility? Exploring reasons for armed non-state actor use and restraint on the use of violence against civilians’, PhD thesis, Graduate Institute of International and Development Studies, Geneva, September 2009, p. 170. For similar comments concerning the FARC, see p. 225.

24 In violation of AP II, Arts. 5(1)(b) and 5(2)(c). Sjöberg notes that persons held by the ELN in Colombia were at risk of exposure to hostilities. See ibid., p. 170.

25 This incident has not, however, been confirmed by the Sri Lankan Air Force itself. See Now Public, ‘SLAF airstrike targeted POW centre – Vanni Radio’, 18 February 2009, available at: http://www.nowpublic.com/world/slaf-airstrike-targeted-pow-centre-vanni-radio (last visited 25 February 2011); Siber News, ‘SLA's detained soldier in custody as POW killed in SLAF airstrike’, 19 February 2009, available at: http://sibernews.com/200902192058.html (last visited 25 February 2011).

26 ‘NATO forces raid secret Taliban prison’, in Sydney Morning Herald (AFP), 18 August 2010, available at: http://news.smh.com.au/breaking-news-world/nato-forces-raid-secret-taliban-prison-20100818-12fay.html (last visited 18 February 2011).

27 For present purposes, ‘humanitarian actors’ include local government and non-governmental organizations (NGOs), the United Nations, the ICRC, and international NGOs.

28 See, among others, T. Whitfield, above note 10, and Ann-Kristin Sjöberg, ‘Dealing with the devil? Humanitarian engagement with armed non-state actors: the case of the National Liberation Army, Colombia’, paper delivered at International Studies Association annual meeting, San Francisco, 26–29 March 2008, available at: www.humansecuritygateway.com/documents/ISA_dealingwiththedevil.pdf (last visited 15 February 2011).

29 ‘In the ICRC's view, both treaty and customary IHL contain an inherent power to intern and may thus be said to provide a legal basis for internment in NIAC.’ Pejic, Jelena, ‘The protective scope of Common Article 3: more than meets the eye’, in International Review of the Red Cross, Vol. 93, No. 881, 2011, p. 207CrossRefGoogle Scholar.

30 Equality before humanitarian law may be fundamental to armed groups’ acceptance of, and adherence to, it. In other words, armed groups prohibited from depriving people of liberty, and thus unable to pursue their military objectives efficiently, may consider humanitarian law inherently biased in favour of their enemy. On the ‘equality of belligerents’ in NIAC, see generally Somer, Jonathan, ‘Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict’, in International Review of the Red Cross, Vol. 89, No. 867, 2007, pp. 681–682CrossRefGoogle Scholar.

31 Within the meaning of Common Article 3. See ibid., pp. 671–676.

32 See Common Article 3(d) and AP II, Art. 6; see also S. Sivakumaran, above note 13, esp. pp. 498–509.

33 See J. Pejic, above note 29. See also Sassòli, Marco, ‘Taking armed groups seriously: ways to improve their compliance with international humanitarian law’, in International Humanitarian Legal Studies, Vol. 1, No. 1, 2010, pp. 17–18.Google Scholar

34 The subsequent question is whether the internment regime during NIAC should mirror that of the Third or Fourth Geneva Convention (GC III or GC IV). See Sassòli, Marco and Olsen, Laura M., ‘The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 616–627CrossRefGoogle Scholar.

35 See Pejic, Jelena, ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’, in International Review of the Red Cross, Vol. 87, No. 858, 2005CrossRefGoogle Scholar. This article was published as an Annex to the ICRC's Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts presented to the 2007 International Conference of the Red Cross and Red Crescent, and expresses the ICRC's institutional position.

36 For detention, this is evidenced by the AP II, Art. 6, which affords judicial guarantees to persons prosecuted and punished for ‘criminal offences related to the armed conflict’ (emphasis added).

37 Note that analogy to the law of occupation may resolve this conundrum. Zegveld suggests that GC IV, Art. 64, applied by analogy to NIAC, would balance ‘the principle of the continuity of the national legal system and the reality of a plurality of authorities’. Zegveld, Liesbeth, The Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 71CrossRefGoogle Scholar.

38 See, for example, International Covenant on Civil and Political Rights (ICCPR), entered into force 23 March 1976, Arts. 6, 7, 9, 14, and 15; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force 26 June 1987; Standard Minimum Rules for the Treatment of Prisoners, adopted 30 August 1955; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/RES/43/173, adopted 9 December 1988.

39 See, for example, The Sudan Justice and Equality Movement (JEM), Establishment of a JEM Committee for Human Rights, Decree No. 71, 2010, available at: http://www.sudanjem.com/2010/10/establishment-of-a-jem-committee-for-human-rights/ (last visited 14 April 2011).

40 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004]Google Scholar ICJ Rep 136, para 106.

41 ICCPR, Art. 2, for example, imposes obligations upon ‘each state party’.

42 Clapham, Andrew, The Human Rights Obligations of Non-state Actors, Oxford University Press, New York, 2006, p. 36Google Scholar.

43 For more detail, see Petrasek, David, Ends and Means: Human Rights Approaches to Armed Groups, International Council on Human Rights Policy, 2000, pp. 60–61Google Scholar, available at: http://www.ichrp.org/files/reports/6/105_report_en.pdf (last visited 9 February 2011).

44 Christian Tomuschat, ‘The applicability of human rights law to insurgent movements’, in H. Fischer et al. (eds), Krisensicherung und Humanitarer Schutz: Festschrift für Dieter Fleck (Crisis Management and Humanitarian Protection), Berliner Wissenschafts-Verlag, Berlin, 2004, p. 586. See also A. Clapham, above note 42, pp. 283–284; Bellal, Annyssa, Giacca, Gilles, and Casey-Maslen, Stuart, ‘International law and armed non-state actors in Afghanistan’, in International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 18–28CrossRefGoogle Scholar.

45 See Common Article 3 and AP II, Art. 1. See also J. Somer, above note 30, pp. 660–663; S. Sivakumaran, above note 13, pp. 496–497. Although note that ‘[d]ifferent legal constructions exist to explain why armed groups are … bound by certain IHL rules’ (M. Sassòli, above note 33, pp. 12–13). See also A. Clapham, above note 44, p. 280, and A. Bellal et al., above note 44, pp. 9–10.

46 J. Pejic, above note 29, pp. 206–207, 215.

47 Sassòli, Marco, ‘The implementation of international humanitarian law: current and inherent challenges’, in Yearbook of International Humanitarian Law, Vol. 10, 2007, p. 63CrossRefGoogle Scholar.

48 The Revolutionary People's Front in India, as one of many examples, made a declaration during the 49th Session of the Human Rights Sub-Commission, 1997, of its ‘unequivocal intention to comply with Article 3 common of the Geneva Conventions’. Human Rights Watch, ‘These Fellows Must be Eliminated’: Relentless Violence and Impunity in Manipur, 15 September 2008, p. 19, note 33, available at: http://www.hrw.org/en/node/75175/section/1 (last visited 20 November 2010).

49 ‘Memo of Melito Glor Command on Policy Towards Prisoners of War, 18 June 1988’, in NDFP Human Rights Monitoring Committee, NDFP Adherence to International Humanitarian Law: On Prisoners of War, revised edition, Utrecht, 2009, p. 92. In fact, in NIAC the concept of prisoners of war does not exist. It is possible that some armed groups employ the language of international armed conflict when describing their humanitarian obligations to imply their own state-like status.

50 Ibid., pp. 92–93.

51 T. Whitfield, above note 10, p. 11.

52 18 U.S.C. §2339B(a)(1).

53 Including those party to an NIAC, such as the LTTE prior to 2009.

54 Holder, Attorney General, et al. v. Humanitarian Law Project et al., 561 U.S. 25, 21 June 2010.

55 18 U.S.C. §2339A(b)(1–3).

56 The decision of the Supreme Court in Holder, Attorney General, et al. v. Humanitarian Law Project et al. has been subject to criticism. See, for example, Christopher Thornton, ‘Darfur and the flaws of Holder v. HLP’, in Forced Migration Review, No. 37, 2011, pp. 39–40.

57 S. Sivakumaran, above note 13, p. 507, citing Laila Nasry, ‘Interview with Chief Justice Sarath N de Silva: LTTE has no judicial authority – CJ’, in Sunday Times, Sri Lanka, 14 November 2004, available at: http://sundaytimes.lk/021208/news/courts.html (last visited 22 February 2011).

58 See Common Article 3; AP II, Art. 6.

59 D. Petrasek, above note 43, pp. 46–47.

60 T. Whitfield, above note 10, p. 26.

61 S. Sivakumaran, above note 13, p. 494.

62 In fact, as described by the AP II, Art. 5(2)(b), this particular obligation affords parties to conflict a certain margin for fulfilment; obliging them only ‘within the limits of their capabilities’. The Commentary to the AP II describes Article 5(2) as ‘only compulsory as far as the means are available, [but] nevertheless important’. Pilloud, Claude et al. , Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers/ICRC, Geneva, 1987, p. 1389Google Scholar, para 4580.

63 Bossier, Pierre, History of the International Committee of the Red Cross: from Solferino to Tsushima, English translation of French original, Henry Dunant Institute, Geneva, 1985, p. 262Google Scholar.

64 Françoise Perret, ‘ICRC operations in Hungary and the Middle East in 1956’, in International Review of the Red Cross, No. 313, 1996, available at: http://www.icrc.org/eng/resources/documents/misc/57jn8c.htm (last visited 29 April 2011). See also Vonèche Cardia, Isabelle, L'Octobre Hongrois: Entre Croix Rouge et Drapeau Rouge, Bruylant, Bruxelles, 1996, p. 39Google Scholar.

65 See, for example, A. Aeschlimann, above note 19, p. 90, esp. note 22.

66 ICRC, ‘Libya: ICRC visits 50 detainees in Benghazi’, News Release 11/74 25 March 2011, available at: http://www.icrc.org/eng/resources/documents/news-release/2011/libya-news-2011-03-25.htm (last visited 6 April 2011).

67 See also the Statutes of the International Committee of the Red Cross, Art. 4(1)(d).

68 M. Sassòli, above note 33, p. 19.

69 Imprisonment is certainly the more humane outcome where the alternative is mob or popular justice. Note, however, that in contrast to the internment of enemy forces or persons posing a serious risk to armed groups’ security, there may in some cases be practical, humane alternatives to detention, such as fines or community service.

70 Individual liability is a principle relevant to both detention and internment. On the latter, see Ryan Goodman, ‘Rationales for detention: security threats and intelligence value’, in Michael Schmitt (ed.), The War in Afghanistan: A Legal Analysis, International Law Studies, Vol. 85, 2009, p. 378; and J. Pejic, above note 29, p. 209.

71 The capacity of armed groups to satisfy the principle of nullen crimen sine lege – also known as the ‘principle of legality’ – is particularly contentious.

72 GC III, Art. 126.

73 GC IV, Art. 143.

74 A. Aeschlimann, above note 19, p. 88.

75 Ibid.

76 Ibid.

77 Common Article 3; AP II, Art. 6; J.-M. Henckaerts and L. Doswald-Beck, above note 12, pp. 344, 347–352.

78 ICRC, Annual Report 2005, May 2006, p. 188 (emphasis added), available at: http://www.icrc.org/eng/resources/annual-report/index.jsp (last visited 9 February 2011).

79 The ICRC's first formal detention visits were made in 1915 with the agreement of the parties to World War I.

80 ICRC, Annual Report 2005, above note 78, p. 128.

81 The modalities are: access to all detainees within the field of the ICRC's interest; access to all premises used by and for detainees; authorization to repeat visits; possibility to speak freely and in private with the detainees of the ICRC's choice; and the assurance that the authorities will give the ICRC a list of the detainees within its field of interest or authorize it to compile such a list during the visit.

82 T. Whitfield, above note 10, p. 21, notes that ‘winning the trust of an armed group may be a slow and difficult process’.

83 The ICRC treats the war wounded in many contexts, such as Chad. See ICRC, Annual Report 2006, May 2007, pp. 83–84, available at: http://www.icrc.org/eng/resources/annual-report/index.jsp (last visited 8 April 2011).

84 ICRC, Annual Report 2005, above note 78, pp. 175–176.

85 John Hemming, ‘Taliban free 4 ICRC staff kidnapped in Afghanistan’, in Reuters, 29 September 2007, available at: http://www.reuters.com/article/2007/09/29/us-afghan-kidnap-idUSISL27248020070929 (last visited 8 April 2011).

86 ICRC, ‘Afghanistan: 20 years there and much left to do’, News Release, 12 June 2007, available at: http://www.icrc.org/eng/resources/documents/news-release/afghanistan-regional-news-120607.htm (last visited 17 February 2011).

87 ICRC, ‘Afghanistan: first ICRC visit to detainees in Taliban custody’, News Release 09/251, 15 December 2009, available at: http://www.icrc.org/eng/resources/documents/news-release/afghanistan-news-151209.htm (last visited 14 February 2011).

88 As in response to state detention, the ICRC reserves the right to publicize its findings in relation to detention by armed groups where ‘the following conditions are met: (1) the violations are major and repeated or likely to be repeated; (2) delegates have witnessed the violations with their own eyes, or the existence and extent of those violations have been established on the basis of reliable and verifiable sources; (3) bilateral confidential representations and, when attempted, humanitarian mobilization efforts have failed to put an end to the violations; (4) such publicity is in the interest of the persons or populations affected or threatened’. See ICRC, ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of other fundamental rules protecting persons in situations of violence’, in International Review of the Red Cross, Vol. 87, No. 858, 2005, p. 397.

89 A. Aeschlimann, above note 19, p. 94.

90 The NGO Geneva Call, for example, engages armed groups to make a ‘Deed of Commitment for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action’ that contains far-reaching obligations vis-à-vis anti-personnel mines: see Geneva Call, ‘Anti-personnel mines and armed non-state actors’, 2009, available at: http://www.genevacall.org/Themes/Landmines/landmines.htm (last visited 4 March 2011).

91 Common Article 3(2).

92 M. Mack and J. Pejic, above note 8, p. 22.

93 ‘[T]the best [humanitarian] response or responses have to be defined, based on an analysis of the situation as a whole and adapted to the problems identified and their causes’. A. Aeschlimann, above note 19, p. 94.

94 Sassòli, noting the complexity inherent in attempting to establish a dialogue with armed groups on the basis of domestic law, states that ‘the only possibility to engage [armed groups] is to engage them by international law and by mechanisms of international law’. M. Sassòli, above note 47, p. 63. There have, however, been some situations in which an armed group has been willing to apply domestic law.

95 There are, however, certain fundamental differences between the two legal regimes – such as ‘protected person status’ in international armed conflict – that cannot readily be used by analogy. See Sassòli, Marco and Bouvier, Antoine, How Does Law Protect in War, 2nd edition, ICRC, Geneva, 2006, Vol. I, p. 253Google Scholar.

96 M. Mack and J. Pejic, above note 8, p. 13.

97 D. Petrasek, above note 43, pp. 59–60 (emphasis added).

98 ICRC, ‘Afghanistan: conference on Islam and humanitarian law’, News Release 06/55, 21 September 2006, available at: http://www.icrc.org/eng/resources/documents/news-release/afghanistan-news-210906.htm (last visited 14 April 2011).

99 These are akin to those often used to secure adherence to international standards generally. Humanitarian actors may – subject to a comprehensive understanding of the concerned group – use Bangerter's ‘reasons why armed groups choose to respect international humanitarian law’ to argue in favour of the protection of detainees in accordance with international standards. Bangerter, Olivier, ‘Reasons why armed groups choose to respect international humanitarian law or not’, in International Review of the Red Cross, Vol. 93, No. 882, 2011, pp. 353–384CrossRefGoogle Scholar.

100 In international armed conflict, a similar standard applies vis-à-vis the conditions of prisoners of war: see GC III, Art. 25.

101 Note, too, that non-state parties to NIAC have at least a minimum level of organization. See International Criminal Tribunal for the former Yugoslavia, The Prosecutor v. Duško Tadič, Case No. IT-94-1, Jurisdiction (Appeals Chamber), 2 October 1995, para 70.

102 The modes of action common to all of the ICRC's protection action are persuasion, support, mobilization, substitution, and denunciation.

103 ICRC, Annual Report 2008, above note 4, p. 161.

104 ICRC, Annual Report 2005, above note 78, p. 188.

105 ICRC, Annual Report 2006, above note 83, p. 146.

106 Geneva Academy of International Humanitarian Law and Human Rights, ‘Armed non-state actors and international norms: towards a better protection of civilians in armed conflicts’, summary of initial research and discussions during an expert workshop in Geneva in March 2010, available at: http://www.adh-geneva.ch/news/armed-non-state-actors-international-norms (last visited 11 February 2011).

107 Schimmelpenninck van der Oije, P. J. C., ‘International humanitarian law from a field perspective’, in Yearbook of International Humanitarian Law, Vol. 9, 2006, pp. 408–409Google Scholar. Of the ICRC's many press releases in this regard, see for example ICRC ‘Sudan: ICRC facilitates another handover of released detainees’, Release 10/101, 9 June 2010, available at: http://www.icrc.org/eng/resources/documents/news-release/sudan-news-090610.htm (last visited 7 April 2011).

108 Note that a NIAC may arise exclusively between two armed groups: see Common Article 3.

109 Common Article 3(2).

110 A. Aeschlimann, above note 19, p. 90, paraphrased.

111 ICRC, ‘Gaza: ICRC urges Hamas to allow captured Israeli soldier Gilad Shalit regular contact with his family’, News Release 09/1224, 18 June 2009, available at: http://www.icrc.org/eng/resources/documents/news-release/palestine-news-180609.htm (last visited 18 February 2011); ICRC, ‘Gaza: ICRC remains determined to help Gilad Shalit’, Interview with Béatrice Mégevand-Roggo, 23 June 2010, available at: http://www.icrc.org/eng/resources/documents/interview/israel-shalit-interview-230610.htm (last visited 21 February 2011).

112 Jenatsch notes that ‘[t]he ICRC began its work in Colombia in 1969 with prison visits, and in 1980 a permanent delegation was established in Bogotá. The actual fieldwork, however, did not begin until 1991, when local offices were opened in Bucaramanga and Villavicencio’. Thomas Jenatsch, ‘The ICRC as a humanitarian mediator in the Colombian conflict: possibilities and limits’, in International Review of the Red Cross, No. 323, 1998, available at http://www.icrc.org/eng/resources/documents/misc/57jpch.htm (last visited 4 April 2011).

113 See, for example, ‘Colombian troops rescue 22 kidnapped oil workers’, in Guardian Online, 8 March 2011, available at: http://www.guardian.co.uk/world/2011/mar/08/colombian-troops-rescue-oil-workers (last visited 6 April 2011).

114 ICRC, ‘A lifeline to the outside world’, Feature, 5 June 2008, available at: http://www.icrc.org/eng/resources/documents/feature/sri-lanka-feature-naval-commande-050608.htm (last visited 15 February 2011).